Green Card Applicants: Filing EB-2 vs. EB-3 Doesn’t Always Guarantee A Faster Process.

Thursday, December 19, 2013 - 3:15pm

The January Visa Bulletin contained some surprises for Mainland China Born Applicants who are currently in the Green Card Process.

Q: What Does The January Visa Bulletin Mean for Mainland China Born Applicants Currently in the Green Card Process?

Individuals who filed in the EB-3 (Employment Based Third Preference) category can file for the last step of the green card process and potentially complete the process and receive a green card well before individuals who filed in the EB-2 (Second Preference) category. What does this mean for specific cases? It depends on the current state of the green card process.

Q: I have a PERM application pending with the Department of Labor where the minimum position requirements were listed as a Master’s or higher or a Bachelor’s degree plus five years of progressive experience.

A: If your PERM labor certification is approved, you can file an I-140, Immigrant Visa Petition, in the EB-3 category requesting classification as a skilled worker. The risk is if there is a shift of priority dates in the future, you may have to refile an I-140 requesting EB-2 classification as a “Member of the Professions.” If priority dates remain consistent with the current trend, you would be able to complete the green card process more quickly than those filing in the EB-2 category. We expect to see a shift in the numbers as individuals currently in the EB-2 queue move to the EB-3 line and a similar backlog will occur in the EB-3 category and the EB-2 category will move forward as there will be less demand for these visa numbers.

Q: I have received a PERM Labor Certification and filed an I-140, Immigrant Visa Petition, in the EB-2 category.

A: If your employer received an approved I-140 for an EB-2 position, the employer can opt to refile under EB-3. If your priority date is April 1, 2012 or earlier, you can concurrently file an adjustment of status application with the new I-140 filing. The risk is, as mentioned above, a large influx of filings, will significantly backlog the EB-3 category and there will be many adjustments that simply remain pending when priority dates move back. We do not believe that USCIS will allow an individual to have two pending adjustment of status applications each based on a different approved I-140 at the same time, thus, in consultation with immigration counsel, you will need to decide which I-140 to rely on.

Q: I have an approved PERM Labor Certification, an approved I-140 Immigrant Visa Petition in the EB-2 category and a pending Adjustment of Status.

A: If your employer received an approved I-140 for an EB-2 position, the employer can opt to refile under EB-3. If your priority date is April 1, 2012 or earlier, you can request to have your currently pending adjustment of status attached to the new I-140 filing and potentially complete the green card process much earlier than the currently available dates under EB-2. The risk is, as mentioned above, a large influx of filings, will significantly backlog the EB-3 category and there will be many adjustments that simply remain pending when priority dates move back. We do not believe that USCIS will allow an individual to have two pending adjustment of status applications each based on a different approved I-140 at the same time, thus, in consultation with immigration counsel, you will need to decide which I-140 to rely on.

Q: My company is considering filing a PERM labor certification for me, the position I am in typically requires a Master’s degree or a Bachelor’s degree plus 5 years of progressive post-bachelor experience, should I ask the company if I can file as an EB-3?

A: A PERM labor certification’s minimum requirements are driven exclusively by the minimum requirements for the job. They do not relate to an individual’s qualifications. If you have a Master’s and 10 years of experience but the position requires a Bachelor’s plus 3 years, the case must be filed with the employer’s minimum requirements. We strongly caution employers that tailoring or adjusting requirements to benefit specific employees or positions, to benefit from priority dates, is not acceptable under the law and as is clearly evidenced in this category, it can certainly backfire!

Q:What is the Department of State’s Visa Bulletin?

A: The Visa Bulletin establishes cut‐off dates based on the demand for green cards versus the amount actually available under current immigration law. Green cards are allocated based on family- or employment-based category and country of birth for each government fiscal year. As it assesses green card demand and availability, the State Department moves these cut‐off dates forward or back, or not at all. Rapid advancement of cut-off dates is used to generate increased demand or when the State Department calculates that there will be spillover numbers available from other categories. When the State Department believes that all immigrant visa numbers in a particular category will be exhausted (or allocated) by the end of a particular fiscal year (i.e., September 30th), it will indicate an “unavailability” of numbers (marked as “U”) in the Visa Bulletin.

The law prevents any single country from overuse of immigrant visa numbers during a particular fiscal year. As a result, foreign nationals born in countries from which there is significant immigration to the U.S. will typically have a separate cut‐off date (and longer waiting times for an available green card number) in the Visa Bulletin, as illustrated below.

An individual’s priority date or “place in line” for an immigrant visa number under the employment‐based categories is the date on an employer filed a labor certification application or immigrant visa petition. Individuals assigned priority dates that are earlier than the relevant preference category cut‐off date noted in the Visa Bulletin are eligible to move to the last step in the employment‐based green card process – either processing of an adjustment of status application with United States Citizenship and Immigration Services (USCIS) or processing of an immigrant visa at a U.S. consulate abroad. When the category is “unavailable,” individuals cannot file for adjustment of status or receive an immigrant visa.

Conclusion

We strongly caution employers that tailoring or adjusting requirements to benefit specific employees or positions, to benefit from priority dates, is not acceptable under the law and as is clearly evidenced in this category, it can certainly backfire!

For individuals with pending cases, consult with your immigration attorney at Maggio + Kattar to determine the best strategy for your individual cases.